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AliG  UMENT 


IN  TUE 


Matter  of  the  Application 

1  » 


FOlt  THE 


Release  of  Tobacco 


Seized  at  Richmond,  Va. 

AND  NOW 

HELD  BY  THE  TREASURY  DEPARTMENT. 


HUGHES,  DENVER  &.  PECK,  Counsel. 

JANUARY ,  186R. 


WASHIITGTOIT  : 


GIBSON  BROTHERS,  PRINTERS. 


ARGUMENT. 


To  the  Hon.  Hugh  McCulloch, 

Secretary  of  the  Treasury : 

The  undersigned,  counsel  for  Rothschilds  &  Co.,  of  Paris, 
France,  have  the  honor  to  submit  for  your  consideration,  in 
connection  with  the  pending  application  for  the  release  of 
certain  tobacco  now  held  by  the  agents  of  the  Treasury, 
and  owned  and  claimed  by  said  Rothschilds  &  Co.,  the 
following  argument: 

The  claimants  are  the  subjects  of  a  friendly  foreign  State, 
domiciled  in  Paris,  where  they  have  remained  from  a  time 
antecedent  to  the  beginning  of  our  civil  war  to  its  close, 
never  having  had  even  a  temporary  residence  within  the  limits 
of  the  late  Confederate  States. 

There  is  a  subsisting  treaty  of  commerce  and  navigation 
between  France  and  the  United  States,  which  has  been  in  full 
force  for  many  years  past.  Under  the  laws  of  nations  and 
under  said  treaty,  the  subjects  of  France  were  and  are  entitled 
to  all  the  commercial  rights  guarantied  to  neutrals,  and  in 
th is  particular  case  those  rights  include  absolute  immunity 
from  the  capture  or  detention  (except  under  the  blockade)  of 
their  property,  its  confiscation,  or  its  seizure  under  any  of 
the  acts  of  Congress  made  for  the  purposes  of  the  war  in  the 
nature  of  acts  of  forfeiture. 

The  tobacco  in  question  here,  was  bought  before  the  war 
began  ;  in  the  legitimate  course  of  business. 

A  blockade  was  established  by  the  United  States  Govern¬ 
ment,  and  respected  by  Rothschilds  &  Co.,  therefore  their 
tobacco,  of  necessity,  remained  within  the  territory  of  the 
States  in  rebellion,  until  the  close  of  the  war. 


4 


It  was  then  seized  by  the  military  authorities  on  the  express 
ground  that  it  was  the  property  of  aliens,  and  turned  over  to 
the  Treasury  Department.  The  military  issued  an  order 
releasing  the  property  of  citizens,  hut  declined  to  release 
this,  because  the  owners  were  not  citizens. 

The  Attorney  General  having  delivered  an  opinion  to  the 
effect,  that  all  property  received  by  the  Treasury  agents  from 
the  military  authorities  as  captured  or  abandoned,  must  be 
held  under  the  provisions  of  the  act  of  March  12,  1863,  and 
the  parties  confined  to  the  remedy  by  suit  in  the  Court  of 
Claims  provided  in  that  act,  the  question  arises :  Is  this 
property  within  the  terms  of  the  act  of  Congress  and  the 
decision  of  the  Attorney  General? 

It  is  to  he  remarked  in  passing,  that  no  question  upon  the 
validity  of  this  act,  by  reason  of  its  approval  eight  days  after 
the  dissolution  of  Congress,  was  brought  to  the  attention  of 
the  Attorney  General,  nor  has  that  question,  though  distinctly 
raised  since  before  the  Treasury  Department,  yet  been  sub¬ 
mitted  to  him  for  his  decision.  Meanwhile  millions  of  dollars 
of  meritorious  claims,  are  suspended  and  postponed  upon  a 
very  strict  construction,  and  a  stringent  enforcement  of  an 
act  of  Congress  which  one  branch  of  the  national  Legislature 
has  declared  void,  and  which  cannot  fail  to  be  disregarded 
whenever  subjected  to  the  test  of  judicial  examination. 

But  accepting  the  rules  adopted  by  the  Treasury  Depart¬ 
ment  for  its  guidance  in  cases  of  this  kind,  we  proceed  to 
consider  the  question  stated  above ;  does  the  tobacco  of  Roths¬ 
childs  &  Co.  come  within  the  terms  of  the  act  of  Congress 
as  construed  by  the  Attorney  General  ?  That  act  of  Congress 
is  a  municipal  law  of  this  commonwealth  ;  its  scope  and  opera¬ 
tion  affect  only  enemies  and  enemies’  property.  It  cannot,  by 
any justand  fair  intendment, be  made  to  divestthe  well-defined 
and  universally  admitted  rights  of  neutrals,  founded  on  the 
laws  of  nations.  For  the  rights  of  neutrals,  the  United 
States  have  hitherto  .stood  forth  as  the  special  advocate  and 
champion  among  nationalities.  All  departments  of  our 
Government  ought  to  be  slow  to  maintain  that  our  municipal 


laws  are  now  to  overrule  and  destroy  them  in  their  most  vital 
particulars. 

The  Attorney  General  of  the  United  States  has  resorted  to 
the  law  of  nations  for  authority  to  try  citizens  in  time  of  war 
by  Military  Commissions.  (See  Opinion  on  the  case  of  the 
assassins  of  President  Lincoln — pamphlet— July,  1865.)  His 
opinion  on  that  subject  was  followed,  and,  whether  wisely 
or  not,  is  a  precedent  too  recent  and  sealed  with  sanctions 
too  solemn  to  be  now  repudiated  by  the  same  Administration. 

Out  of  sundry  passages  of  similar  purport,  we  quote  the 
following : 

“Congress  can  declare  war.  When  war  is  declared,  it 
must  be,  under  the  Constitution,  carried  on  according  to  the 
known  laws  and  usages  of  war  among  civilized  nations. 
Under  the  power  to  define  those  law's,  Congress  cannot  abro¬ 
gate  them  or  authorize  their  infraction.  The  Constitution 
does  not  permit  this  Government  to  prosecute  a  wrar  as  an 
uncivilized  and  barbarous  people.”  (Opinion,  pp.  4,  5.) 

Let  us  now  turn  to  the  law  of  nations  to  ascertain  the 
rights  of  neutrals  in  time  of  war. 

In  Chancellor  Kent’s  chapter  “Of  the  various  kinds  of 
property  liable  to  capture,”  (1st  Commentaries,  p.  83,  etseq.,) 
it  is  laid  down  that  the  domicil  of  a  party  determines  his 
nationality  as  to  the  question  of  neutral  rights,  and  he  says : 
“This  same  principle,  that,  for  all  commercial  purposes,  the 
domicil  of  the  party  without  reference  to  the  place  of  birth 
becomes  the  test  of  national  character,  has  been  repeatedly 
and  explicitly  admitted  in  the  courts  of  the  United  States. 
If  he  resides  in  a  belligerent  country,  his  property  is  liable 
to  capture  as  enemy’s  property,  and  if  he  resides  in  a  neutral 
country  he  enjoys  all  the  privileges,  and  is  subject  to  all  the 
inconveniences,  of  the  neutral  trade.  He  takes  the  advantages 
and  disadvantages,  whatever  they  may  be,  of  the  country  of 
his  residence.  The  doctrine  is  founded  on  the  principles  of 
national  law,  and  accords  with  the  reason  and  practice  of  all 
civilized  nations.” 

The  principle  insisted  on  by  the  United  States  in  their 
diplomatic  correspondence  w'ith  England,  wras,  that  neutrals 


6 


were  of  right  entitled  “  to  trade,  with  the  exception  of  block¬ 
ades  and  contrabands,  to  and  between  all  ports  of  the  enemy, 
and  in  all  articles,  although  the  trade  should  not  have  been 
opened  to  them  in  time  of  peace.” 

The  trade  with  France,  as  before  remarked,  is  regulated 
by  a  commercial  treaty,  and  it  was  in  time  of  peace  that  the 
property  in  question  here  was  acquired. 

It  is  not  pretended  that  this  tobacco  was  ever  moved  or 
intended  to  be  moved  in  violation  of  the  blockade,  or  that  it 
was  contraband  of  war. 

The  right  of  French  subjects  to  trade  with  the  people  of 
the  United  States  being  recognized  and  regulated  by  the 
laws  of  nations  and  by  treaty,  cannot  be  taken  away  or 
impaired  by  our  municipal  laws. 

The  general  commercial  rights  of  neutrals  have  been  thus 
stated  by  Lord  Erskine,  in  his  speech  of  March  8,  1808,  upon 
the  orders  in  council : 

“The  public  law  establishes,  that  countries  not  engaged  in 
war,  not  interposing  in  it,  shall  not  be  affected  by  the  differ¬ 
ences  of  contending  nations;  but  to  use  the  very  words  of  the 
eminent  judge  who  now  presides  with  so  much  learning  and 
ability  in  the  Court  of  Admiralty,  (Sir  William  Scott,  Lord 
Stowell,)  ‘upon  the  breaking  out  of  war,  it  is  the  right  of 
neutrals  to  carry  on  their  accustomed  trade,  with  an  exception 
of  the  particular  cases  of  a  trade  to  blockaded  ports,  or  in 
contraband  articles,  and  of  their  ships  being  liable  to  visita¬ 
tion  and  search.’  ”  (Upton’s  Maritime  Warfare  and  Prize, 
p.  259.) 

In  Marten’s  Law  of  Nations,  (p.  296,)  it  is  said,  that  “  war 
suspends  all  the  laws  of  property  between  the  belligerent 
powers,  but  not  between  them  and  neutral  powers,  so  that 
although  an  enemy  may  seize  on  the  property  of  an  enemy, 
and  dispose  of  it  with  all  its  appurtenances,  still  the  right  of 
the  original  proprietor  does  not  cease  as  long  as  he  has  not 
expressly  or  tacitly  renounced  it,  or  as  long  as  he  has  not 
given  it  up  as  lost.”  Yattel  says  that  there  are  certain  rules 
on  which  Europe  seems  to  be  generally  agreed,  and  that  “the 
first  is,  carefully  to  distinguish  ordinary  goods  which  have 


7 

no  relation  to  war,  from  those  that  are  peculiarly  subservient 
to  it.” 

“Neutral  nations  should  enjoy  perfect  liberty  to  trade  in  the 
former ;  the  belligerent  powers  cannot  with  any  reason  refuse 
it,  or  prevent  the  importation  of  such  goods  into  the  enemy’s 
country;  the  care  of  their  own  safety,  the  necessity  of  self- 
defence,  does  not  authorize  them  to  do  it,  since  those  things 
will  not  render  the  enemy  more  formidable.  An  attempt  to 
interrupt  or  put  a  stop  to  this  trade  would  be  a  violation  of 
the  rights  of  neutral  nations,  a  flagrant  injury  to  them; 
necessity,  as  we  have  observed,  being  the  only  reason  which 
can  authorize  any  restraint  on  their  trade  and  navigation  to 
the  ports  of  the  enemy.”  (Vattel,  Book  3d,  chap.  7,  sec.  112.) 

“  The  effects  of  neutrals  found  in  an  enemy’s  ships,  are  to 
be  restored  to  the  owners,  against  whom  there  is  no  right  of 
confiscation,  but  without  any  allowance  for  detainer,  decay, 
&c.”  (Vattel,  Book  3d,  chap.  7,  sec.  116.) 

And  to  the  same  effect  says  Chancellor  Kent:  “  The  two 
distinct  propositions,  that  enemy’s  goods  found  on  board  a 
neutral  ship  may  lawfully  be  seized  as  prize  of  war,  and  that 
the  goods  of  a  neutral  found  on  board  of  an  enemy’s  vessel 
were  to  be  restored,  have  been  explicitly  incorporated  into 
the  jurisprudence  of  the  United  States,  and  declared  by  the 
Supreme  Court  to  be  founded  in  the  law  of  nations.  The 
rule,  as  it  was  observed  by  the  court,  rests  on  the  simple 
principle,  that  war  gave  a  right  to  capture  the  goods  of  an 
enemy,  but  gave  no  right  to  capture  the  goods  of  a  friend. 
The  neutralflag  constituted  no  protection  to  enemy’s  property, 
and  the  belligerent  flag,  communicated  no  hostile  character 
to  neutral  property.  The  character  of  the  property  depended 
upon  the  fact  of  ownership,  and  not  upon  the  character  of 
the  vehicle  in  which  it  was  found.”  (Kent’s  Commentaries, 
vol.  1.,  p.  129.) 

It  will  not  be  pretended  that  the  rights  of  capture  on  land 
are  more  extended  than  at  sea,  and  we  assert  with  confidence 
that  no  authority  can  be  found  in  the  law  of  nations  to 
warrant  or  excuse  the  capture  and  appropriation  of  the  prop¬ 
erty  of  a  neutral  domiciled  abroad  in  such  a  case  as  this. 


8 


The  general  principle  is  thus  laid  down  by  Grotius,  and 
is  too  well  established  to  require  argument  or  admit  of  ques¬ 
tion:  “This  is  plain,  before  the  right  of  war  can  entitle  us 
to  anything  taken,  it  is  requisite  that  our  enemy  had  first  the 
true  propriety  of  it;  for  what  things  may  he  within  the 
enemy’s  garrisons,  or  towns,  the  owners  thereof,  being  neither 
subjects  to  our  enemies,  nor  at  war  with  us,  cannot  by  war 
he  made  lawful  booty,  as  is  proved,  among  others,  by  the 
saying  of  Escliines,  that  Ampliipolis  being  a  city  belonging 
to  the  Athenians,  could  not  lawfully  be  taken  by  King  Philip 
in  a  war  which  he  made  with  the  Amphipolitanes ;  for  there 
was  no  reason  for  it;  and  the  changing  of  properties  by  mere 
force  is  too  hateful  to  be  produced.’  ’  (Grotius,  Book  3d,  chap. 
6,  sec.  5.) 

Other  authorities  might  be  mentioned,  but  enough  have 
been  cited  to  show  that  the  property  of  a  neutral,  domiciled 
in  neutral  territory,  is  not  enemies’  property,  nor  the  subject 
of  capture  under  the  laws  of  nations. 

It  is  to  be  remembered  that  this  claim  was  formally  pre¬ 
sented  to  the  Government  of  the  United  States,  through  the 
legation  of  France,  and  comes  to  the  Treasury  Department 
from  the  State  Department,  having  thus  been  transmitted, 
in  the  most  orderly  manner,  as  a  claim  of  a  foreign  subject, 
the  citizen  of  a  friendly  nation. 

Is  the  claim  to  be  adjudicated  under  the  law  of  nations? 
If  so,  there  can  be  little  difficulty  in  arriving  at  a  decision 
favorable  to  those  whom  we  represent. 

The  Attorney  General  of  the  United  States  has  declared, 
as  I  have  shown  above,  that  Congress  has  no  power  to  abro¬ 
gate  or  change  the  laws  of  nations. 

As  to  the  binding  obligation  of  those  laws,  it  may  not  be 
amiss  to  recall  what  some  eminent  authors  have  said. 

Blaclcstone,  in  speaking  of  the  law  of  nature,  (which  is  the 
foundation  of  the  lav/  of  nations,  and  from  whence  its  most 
important  principles  are  derived,)  says  :  “  This  law  of  nature 
being  coeval  with  mankind,  and  dictated  by  God  himself,  is 
of  course  superior  in  obligation  to  any  other.  It  is  binding 
over  all  the  globe,  in  all  countries,  and  at  all  times;  no 


9 


human  laws  are  of  any  validity  if  contrary  to  this;  and  such 
of  them  as  are  valid  derive  all  their  force  and  all  their 
authority,  mediately  or  immediately  from  this  original.” 
(1st  Blacks.  Comm.,  p.  41.) 

The  law  of  nations,  the  same  author  tells  us,  “  depends 
entirely  upon  the  rules  of  natural  law,  or  upon  mutual  com¬ 
pacts,  treaties,  leagues  and  agreements,  between  these  several 
communities;  (independent  nations,)  in  the  construction  also 
of  which  compacts  we  have  no  other  rule  to  resort  to  hut  the 
law  of  nature;  being  the  only  one  to  which  all  the  commu¬ 
nities  are  equally  subject,  and  therefore  the  civil  law  very 
justly  observes,  that  quod  naturalis  ratio  inter  omnes  homines 
constituit,  vocatur  jus  gentium.”  (Yol.  1,  p.  43.) 

“The  law  of  nations,”  says  Chancellor  Kent,  “so  far  as 
it  is  founded  on  the  principles  of  natural  law,  is  equally 
binding  in  every  age  and  upon  all  mankind.”  (Kent’s 
Commentaries,  vol.  1,  p.  4.) 

Another  author  says :  “  "VVhat  has  been  said  concerning  the 
law  of  nations,  suggests  several  important  reflections;  among 
others,  that,  since  the  law  of  nations  is  in  reality  nothing 
else  hut  the  law  of  nature  itself,  there  is  hut  one  and  the 
same  rule  of  justice  for  all  mankind,  to  nations  as  well  as 
individuals.  And  the  nation  which  violates  this  law,  is 
guilty  of  as  great  a  crime  as  individuals,  perhaps,  a  greater, 
since  national  wrong  is  attended  with  more  unhappy  conse¬ 
quences.”  (Burlamaqui,  p.  218.) 

“Since,  therefore,  the  necessary  law  of  nations  consists 
in  the  application  of  the  law  of  nature  to  states,  which  law 
is  immutable,  as  being  founded  on  the  nature  of  things,  and 
particularly  on  the  nature  of  man,  it  follows  that  the  neces¬ 
sary  law  of  nations  is  immutable.  Whence,  as  this  law  is 
immutable,  and  the  obligations  that  arise  from  it  necessary 
and  indispensable,  nations  can  neither  make  any  changes  in 
it  by  their  conventions,  dispense  with  it  in  their  own  conduct, 
nor  reciprocally  release  each  other  from  the  observance  of  it.” 
(Vattel,  preliminaries,  secs.  8,  9.) 

If  it  be  true,  that  Congress  cannot  rightfully  alter  or 
abridge  the  rights  secured  to  nations  or  individuals  by  the 


10 


laws  of  nations,  then  it  is  not  competent  for  that  body  by  a 
municipal  law  to  prescribe  new  definitions  or  conditions  for 
captures  and  lawful  booty,  or  to  make  that  prize  of  war 
which  was  not  so  before  under  the  laws  of  nations.  Neither 
is  it  competent  for  Congress  to  compel  neutrals  to  part  with 
their  property  to  the  Treasury  Department  by  seizures  and 
captures  unknown  to  the  laws  of  nations,  and  to  resort  for 
redress  to  the  Court  of  Claims,  (within  two  years  after  the 
rebellion,)  and  to  seek  their  remedy  under  a  law  fixing  the 
measure  of  damages  far  below  the  compensatory  standard. 

It  is  to  the  executive  departments  of  our  government  they 
must  go  for  redress,  and  this  is  to  he  administered  directly 
through  the  action  of  those  departments  themselves  or  indi¬ 
rectly  through  joint  commissions,  or  other  tribunals  appointed 
for  the  purpose  and  governed  in  their  adjudications  by  the 
laws  of  nations. 

“  There  is  no  permanent  and  general  international  court,  and 
it  will  he  found  that,  in  general,  the  sovereign  or  government 
of  each  state  who  has  the  power  of  declaring  war  and  peace, 
has  also  as  an  incident,  the  sole  power  of  deciding  upon  ques¬ 
tions  of  booty,  capture,  prize,  and  hostile  seizure,  though 
sometimes  that  power  is  delegated,  as  in  Great  Britain,  as  res¬ 
pects  maritime  seizures,  by  commission  to  the  judge  of  the 
Admiralty  Court,  with  an  appeal  from  his  decision  to  the  Privy 
Council.  In  these  cases,  no  other  municipal  court  has  cogni¬ 
zance  of  any  hostile  seizure.  Elphinston  vs.  Bedreechund, 
Knapp’s  reports,  316  to  361;  and  Hill  vs.  Reardon,  2  Russ, 
reports,  608,  and  further,  post  p.  392.  So  there  is  no  general 
international  court  in  which  a  treaty  can  he  directly  enforced, 
although,  collaterally,  its  meaning  may  he  discussed  in  a 
municipal  court;  therefore,  no  hill  to  enfore  a  treaty  can  he 
sustained  in  equity.  Nabob  of  Carnatic  vs.  East  India  Com¬ 
pany,  2  Yesey,  jun.,  56,  and  Hill  vs.  Reardon,  2  Sim.  and 
Stu.,  437,  2  Russ.  Rep.,  608.”  (Note  to  Yattel,  p.  4.) 

The  Supreme  Court  of  the  United  States,  in  the  case  of 
the  Venice ,  decided  in  December,  1864,  settled  some  important 
points  as  to  the  right  of  capture  by  the  Union  forces,  after 
the  occupation  of  rebel  towns  and  territory,  which  seem  to 


11 


be  conclusive  against  any  claim  on  the  part  of  the  government 
to  the  property  now  in  question. 

The  following  is  a  statement  of  the  points  resolved,  taken 
from  the  official  report  of  the  case,  in  second  Wallace’s  Re¬ 
ports,  p.  258. 

As  we  have  adopted  the  method  in  this  argument  of  quoting 
authorities  at  length,  we  also  print  in  an  appendix,  in  full, 
the  opinion  of  the  Court  by  Chief  Justice  Chase.  We  add, 
also,  the  opinion  of  the  Attorney  General  in  the  Savannah 
cotton  cases.  The  decision  of  the  Supreme  Court,  will,  of 
course,  overrule  the  opinion  of  the  Attorney  General,  wherever 
there  is  a  conflict. 

In  this  place,  it  is  sufficient  for  our  purpose  to  state  the 
points  decided : 

1.  The  military  occupation  of  the  city  of  New  Orleans  by  the  forces  of 

the  United  States,  after  the  dispossession  of  the  rebels  from  that 
immediate  region  in  May,  1862,  may  be  considered  as  having  been 
substantially  complete  from  the  publication  of  General  Butler’s 
proclamation  of  the  6th  (dated  on  the  1st)  of  that  moDth  ;  and  all 
the  rights  and  obligations  resulting  from  such  occupation,  or  from 
the  terms  of  the  proclamation,  existed  from  the  date  of  that 
publication. 

2.  This  proclamation,  in  announcing,  as  it  did,  that  “all  rights  of 

property”  would  be  held  “  inviolate,  subject  only  to  the  laws  of  the 
United  States;”  and  that  “  all  foreigners  not  naturalized,  claiming 
allegiance  to  their  respective  governments,  and  not  having  made  oath 
of  allegiance  to  the  government  of  the  Confederate  States,”  would 
be  “protected  in  their  persons  and  property  as  heretofore  under 
the  laws  of  the  United  States,”  did  but  reiterate  the  rules  estab¬ 
lished  by  the  legislative  and  executive  action  of  the  national 
Government,  and  which  may  also  be  inferred  from  the  policy  of  the 
war,  in  respect  to  the  portions  of  the  States  in  insurrection  occupied 
and  controlled  by  the  troops  of  the  Union.  It  was  the  manifestation 
of  a  general  purpose,  which  seeks  the  re-establishment  of  the  national 
authority,  and  the  ultimate  restoration  of  States  and  citizens  to 
their  national  relations  under  better  forms  and  firmer  guarantees, 
without  any  view  of  subjugation  by  conquest. 


12 


3.  Substantial,  complete,  and  permanent  military  occupation  and  control, 

as  distinguished  from  one  that  is  illusory,  imperfect  and  transitory, 
works  the  exception  made  in  the  act  of  July  13th,  1861  (§  5), 
which  excepts  from  the  rebellious  condition  those  parts  of  rebellious 
States  “  from  time  to  time  occupied  and  controlled  by  the  forces  of  the 
United  States  engaged  in  the  dispersion  of  the  insurgents and 
such  military  occupation  draws  after  it  the  full  measure  of  protection 
to  persons  and  property  consistent  with  a  necessary  subjection  to 
military  government. 

4.  The  President’s  proclamation  of  31st  of  March,  1863,  affected  in  no 

respect  the  general  principles  of  protection  to  rights  and  property 
under  temporary  government,  established  after  the  restoration  of 
national  authority. 

5.  Vessels  and  their  cargoes  belonging  to  citizens  of  New  Orleans,  or 

neutrals  residing  there  and  not  affected  by  any  attempts  to  run  the 
blockade,  or  by  any  act  of  hostility  against  the  United  States,  were 
protected  after  the  publication  of  General  Butler’s  proclamation, 
dated  May  1st,  1862,  and  published  on  the  6th  ;  though  such 
persons,  by  being  identified  by  long  voluntary  residence  and  by 
relations  of  active  business  with  the  enemy,  may  have  themselves 
been  “  enemies”  within  the  meaning  of  the  expression  as  used  in 
public  law. 

The  second,  third,  and  fifth  of  the  above  points  certainly 
are  conclusive  to  show  the  illegality  of  the  seizure  of  the 
private  property  of  neutrals ;  and  that  illegality,  the  court 
say,  resulted  not  alone  from  the  promise  of  protection  con¬ 
tained  in  the  proclamation  of  the  military  commander,  hut 
from  “rules  established  by  the  legislative  and  executive 
action  of  the  national  government,”  and  from  “the  policy 
of  the  war.” 

The  act  of  Congress  of  March  12,  1863,  as  construed  by 
the  Attorney  General,  seems  to  introduce  new  rules  whereby 
to  determine  the  legality  of  captures,  whereas  the  laws  of 
nations  must  determine  them,  and  the  act  of  Congress  must 
he  interpreted  to  use  the  terms  “  captured  property,”  in  the 
established  sense  of  the  laws  of  war  recognized  by  the  civil¬ 
ized  world.  If  the  government  of  the  United  States  is 
content  to  rest  its  title  to  captured  property  on  the  laws  of 
nations,  its  only  safe  foundation,  then  the  act  of  March  12, 


13 


1863,  if  free  from  other  fatal  objections,  would  have  its  legiti¬ 
mate  operation  in  the  disposal  of  abandoned  or  derelict 
property,  and  of  property  lawfully  captured  by  the  laws  of 
war,  and  therefore  forfeited  to  the  successful  belligerent. 
The  remedy  by  suit  in  the  Court  of  Claims,  is  thus  easily 
comprehended,  as  a  provision  made  in  view  of  the  peculiar 
character  of  the  contest,  to  except  from  the  penalties  and 
evils  of  the  war  the  loyal  citizens  of  the  United  States,  and 
friendly  foreigners  who,  by  being  domiciled  in  rebel  territory, 
have  become  impressed,  technically,  with  the  character  of 
enemies. 

But  if  the  act  is  to  be  construed  as  making  a  lawful  capture 
of  every  taking  of  private  property  seized  from  citizens  or 
resident  foreigners  by  military  force,  and  turned  over  to  the 
agents  of  the  treasury;  it  is  unconstitutional  and  void,  such 
captures  being  unsupported  except  by  a  municipal  law  of  the 
United  States,  made  in  violation  of  the  guarantee  that  “  no 
person  shall  be  deprived  of  his  property  unless  by  due  process 
of  law,”  or  in  other  words,  by  judicial  proceedings  and 
sentence. 

But  surely  it  will  not  be  claimed  by  those  who  go  farthest 
to  expand  the  powers  conferred  by  this  act  of  Congress  ;  that 
the  National  Legislature  has  solemnly  decreed  that  neutrals 
domiciled  within  the  dominions  of  a  friendly  foreign  power 
and  at  no  time  resident  in  rebel  territory,  are  public  enemies, 
and  their  property,  acquired  ante-bellum  under  the  laws  of  the 
United  States  lawful  booty!  Yet,  unless  this  position  is 
assumed,  and  sustained  by  the  executive  departments  of  our 
government,  no  such  claimant  need  ever  be  driven  to  the 
Court  of  Claims,  or  to  any  other  court  for  his  redress. 

We  do  not  at  all  admit  that  the  opinion  of  the  Attorney 
General  goes  any  such  length.  We  repeat,  that  no  fail- 
interpretation  of  the  act  of  Congress  of  March  12,  1863,  can 
extend  it  to  the  property  of  neutrals,  and  that  it  embraces 
only,  and  was  intended  only  to  include  the  property  of  belli¬ 
gerents  and  public  enemies.  Among  “public  enemies”  we 
admit  that  the  subjects  of  neutral  powers,  who  have  their 


14 


domicil  within  the  territory  of  a  belligerent  during  the  war, 
are  included  by  the  laws  of  nations. 

Our  construction  of  the  act  is  supported  by  the  regulations 
made  in  pursuance  of  it,  and  to  carry  it  into  etfect  by  the 
President  of  the  United  States  and  the  Secretary  of  the 
Treasury,  as  well  as  by  the  terms  of  the  act  itself.  The  act 
includes  only  such  property  as  was  “  abandoned,”  or  “cap¬ 
tured”  within  the  insurrectionary  States. 

In  the  regulations,  abandoned  property  is  thus  defined: 

“First.  That  which  has  been  or  may  be  deserted  by  the 
owners;  and  second.  That  which  has  been  or  may  be  volun¬ 
tarily  abandoned  by  the  owners  to  the  civil  or  military 
authorities  of  the  United  States.” 

In  the  subsequent  law  of  July,  1864,  abandoned  property 
is  defined  by  the  national  legislature  to  be  such  as  the  owner 
shall  have  voluntarily  abandoned,  “and  engaged  in  arms  or 
otherwise  in  aiding  or  encouraging  the  rebellion.”  (13th 
Stats,  at  large,  p.  376.) 

Captured  property  is  defined  in  the  regulations,  (pamphlet, 
p.  32,)  to  be  “  that  which  has  been  or  may  be  seized  or  taken 
from  hostile  possession  by  the  military  or  naval  forces  of  the 
United  States.” 

These  definitions,  comprehensive  as  is  the  latter,  do  not, 
either  of  them,  reach  the  case  under  consideration,  as  the 
tobacco  of  the  Rothschilds  was  neither  abandoned  property 
nor  captured  property  within  the  sense  of  the  Treasury 
regulations. 

It  is  true,  that  in  the  opinion  of  the  Attorney  General,  the 
expression  is  used  in  defining  captured  property,  property 
“  actually  and  hostilely  seized  and  taken  on  land  by  a  mili¬ 
tary  officer  or  soldier  of  the  United  States,  in  a  state  or  any 
portion  of  a  state  designated  as  in  insurrection  against  the 
United  States.”  (Opinion  in  the  Savannah  cotton  cases.) 

It  is  not  to  be  presumed,  in  fairness,  that  the  Attorney 
General  intended  by  this  language  to  extend  the  definition 
beyond  the  terms  employed  in  the  Treasury  regulation ;  as, 
literally  taken,  and  when  the  qualifying  term  “hostile,”  is 
applied  to  the  taking,  instead  of  the  possession  from  which 


15 


the  property  is  taken,  it  becomes  simply  a  definition  of  rob¬ 
bery,  nothing  more. 

But  what  is  the  remedy  ?  The  Attorney-General  has 
advised  the  Secretary  of  the  Treasury,  that  all  property  cap¬ 
tured  by  the  military  forces  and  turned  over  to  the  Treasury 
Agents,  is  to  be  sued  for  in  the  Court  of  Claims — that  the 
remedy  provided  in  that  Court  is  exclusive  of  all  others,  and 
in  pursuance  of  this  opinion  the  Secretary  has  declined  to  go 
into  an  investigation  of  the  legality  of  captures,  made  in  the 
ordinary  way.  Does  this  exclude  the  Secretary  from  granting 
summary  relief  in  this  case?  If  we  have  shown  that  the  act 
of  Congress  only  applied  to  enemies’  property  the  question  is 
answered.  But  were  it  otherwise,  in  this  case  the  very  fact 
of  the  illegality  of  the  capture  comes  up  as  a  part  of  the  report 
of  the  military,  for  the  refusal  to  release  this  property,  and 
the  act  of  turning  it  over  to  the  Treasury  Agent  are  made  by 
the  military  commander  upon  the  express  ground  that  the 
tobacco  is  the  property  of  an  alien.  Thus  the  rights  of  the 
claimants  are  manifest  from  the  very  same  source  that  informs 
the  Treasury  of  the  seizure,  and  the  question  simply  presents 
itself — shall  the  Department  consummate  and  continue  an 
invasion  of  neutral  rights  apparent  on  the  face  of  the  pro¬ 
ceedings  of  the  military  authorities  by  their  own  report  ?  We 
have  already  adverted  to  the  fact  that  a  different  rule  was  laid 
down  for  citizens  than  the  one  applied  to  our  clients,  and  that, 
in  general,  private  property  was  returned  to  its  owners  at 
Richmond.  We  submitted  a  copy  of  the  military  order  to 
that  effect  with  our  application  for  the  release  of  the  tobacco. 

That  order  was  entirely  consistent  with  the  standing  orders 
of  our  army,  with  the  usages  of  civilized  warfare,  and  with 
the  “policy  of  the  war”  as  judicially  recognized  by  the 
Supreme  Court.  The  military  commander  had  full  power  to 
issue  it.  It  would  present  us  in  no  very  enviable  light  as  a 
Government,  to  despoil  the  friendly  neutral  of  his  goods,  in 
violation  of  law,  and  restore  to  the  contumacious  rebel  the 
property  taken  from  him  to  which  a  valid  claim  might  have 
been  made. 


16 


To  sum  up  tlie  whole  matter,  the  ease  stands  thus  :  A 
neutral  trader,  in  time  of  peace,  became  the  purchaser  of 
American  products,  which  lie  held  under  the  protection  of 
American  law,  as  well  as  of  the  laws  of  nations.  Civil  dis¬ 
orders  ensued,  and  our  Government  for  a  time  was  unable  to 
enforce  its  authority  in  the  district  where  the  property  lay. 
Instead  of  closing  our  ports,  we  declare  and  enforce  a  blockade, 
and  Avhile  complaining  of  foreign  powers  for  according  bellig¬ 
erent  rights  to  the  formidable  military  power  of  the  insurgent 
states,  we,  ourselves,  admit  them  to  the  rights  and  inflict  on 
them  the  injuries  annexed  to  that  condition.  The  neutral 
trader  respects  our  blockade,  and  patiently  aAvaits  the  termi¬ 
nation  of  the  war  and  the  restoration  of  our  authority.  In 
war  he  is  protected  from  spoliation  by  the  law  of  nations — 
in  peace  he  may  claim,  as  his  right,  in  which  we  are  bound 
to  maintain  him,  perfect  immunity  from  forfeiture  or  deten¬ 
tion.  But  we  seize  his  property  by  military  force,  committing 
an  act  of  spoliation,  not  making  a  lawful  capture,  and  we 
hold  it  by  a  void  act  of  Congress,  made  only  for  enemies  and 
enemies’  property.  This  is  a  process  by  which  the  status  of 
an  enemy  in  law,  is  made  to  depend,  not  on  the  voluntary 
act  of  the  party  himself  nor  the  relation  he  sustains  to  our 
Government,  but  on  the  lawless  acts  of  our  own  officers. 

While  such  proceedings  are  very  well  calculated  to  make 
the  unhappy  victims  of  so  barbarous  a  policy  enemies  in  fact, 
they  can  never  serve  to  convince  enlightened  reason  that  they 
constitute  them  enemies  in  law  at  the  time  of  our  aggressions 
upon  them.  We  indulge  the  hope  that  a  wiser  and  more 
just  policy  will  prevail  ;  and  that  a  great  nation,  in  the 
exhibition  of  sublime  power  to  compel  obedience  to  law  on 
the  part  of  individuals,  will  not  forget  to  render  the  obedience 
to  law  due  from  it  as  one  of  the  family  of  nations. 

In  conclusion,  we  beg  leave  to  say,  that  this  application  is 
made  to  you,  as  Secretary  of  the  Treasury,  because  you  have 
the  control  of  the  property,  the  Department  of  State  having 
formally  notified  the  claimants  that  the  whole  matter  rests 
with  you,  thus  washing  its  hands  of  the  business  ;  and  we 
indulge  the  hope  that  the  questions  presented,  since  they 


17 


have  been  devolved  on  the  Treasury  by  the  Secretary  of  State, 
may  be  met  and  decided  with  that  frankness  and  candor 
which  so  eminently  distinguish  the  present  head  of  the 
Treasury  Department ;  and  that  we  may  not  receive  for  an 
answer,  “that  the  property  cannot  now  be  released  by  the 
military  authorities  because  it  has  passed  under  the  control 
of  the  Treasury,  aud  that  it  cannot  be  released  by  the  Treasury 
because  it  was  delivered  over  by  the  military,”  with  a  refer¬ 
ence  to  the  learned  opinion  of  the  Attorney  General  to 
demonstrate  the  legality  and  justice  of  the  answer  ! 

Respectfully  submitted. 

HUGHES,  DENVER  &  PECK, 

Counsel  for  Rothschilds  &  Co. 


APPENDIX. 


DECISION  OF  THE  SUPREME  COURT  OF  THE  UNITED 
STATES  IN  THE  CASE  OF  “THE  VENICE.” 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

This  cause  comes  before  us  upon  appeal  from  a  decree  of 
the  District  Court  of  the  United  States  for  the  Southern 
District  of  Florida. 

The  schooner  Venice,  with  a  cargo  of  two  hundred  and 
twenty-five  hales  of  cotton,  was  captured  in  Lake  Ponchar- 
train  by  the  United  States  ship-of-war  Calhoun,  on  the  15th 
of  May,  1862  ;  was  taken  to  Key  West ;  was  libelled  as  prize 
of  war  in  the  District  Court;  and  was  restored  with  her 
cargo,  to  the  claimant,  David  Gr.  Cooke,  by  its  decree.  The 
United  States  appealed.  The  claimant,  Cooke,  was  a  British 
subject,  but  had  resided  in  New  Orleans  nearly  all  the  time 
for  ten  years  preceding  the  capture.  He  was  a  clerk  in  a 
large  mercantile  establishment  until  June,  1861,  when  the 
firm  closed  its  affairs,  and  he  turned  his  attention  to  other 
business,  particularly  to  the  collection  of  planters’  accept¬ 
ances  which  he  had  purchased,  and  to  the  investment  of 
their  proceeds  in  cotton.  Early  in  April,  1862,  he  bought 
two  hundred  and  five  bales  in  Mississippi;  and  had  them 
brought  to  New  Orleans,  where  he  purchased  the  Venice  on 
the  9th  of  April.  Finding  that  the  two  hundred  and  five 
bales  would  not  fully  complete  the  lading  of  the  schooner, 
Cooke  bought  twenty  bales  more  about  the  12th  of  April. 
The  whole  was  put  on  board  with  as  little  delay  as  possible, 
and  on  the  17th  of  April,  the  schooner  was  towed  out  into 
Lake  Ponchartrain,  and  taken  to  the  head  of  the  lake,  where 
she  was  anchored,  and  remained,  with  only  such  change  of 
position  as  was  necessary  to  obtain  a  supply  of  water,  until 


19 


the  capture.  In  the  meantime  the  vessel  was  undergoing 
repairs. 

While  these  transactions  were  in  progress,  the  war  was 
flagrant.  The  States  of  Louisiana  and  Mississippi  were 
wholly  under  rebel  dominion,  and  all  the  people  of  each 
State  were  enemies  of  the  United  States.  The  rule  which 
declares  that  war  makes  all  the  citizens  or  subjects  of  one 
belligerent  enemies  of  the  Government  and  of  all  the  citi¬ 
zens  or  subjects  of  the  other,  applies  equally  to  civil  and  to 
international  wars.*  Either  belligerent  may  modify  or  limit 
its  operation  as  to  persons  or  territory  of  the  other  ;  but  in 
the  absence  of  such  modification  or  restriction  judicial 
tribunals  cannot  discriminate  in  its  application. 

The  vessel  and  the  cotton  at  the  time  of  purchase  belonged 
to  citizens  either  of  Mississippi  or  Louisiana,  and  was  there¬ 
fore  enemies’  property. 

Did  the  transfer  to  Cooke  change  the  character  in  this 
respect  of  both  or  either? 

Cooke  was  a  British  subject,  but  was  identified  with  the 
people  of  Louisiana  by  long  voluntary  residence  and  by  the 
relations  of  active  business,  t  Upon  the  breaking  out  of  the 
war,  he  might  have  left  the  Htate  and  withdrawn  his  means; 
but  he  did  not  think  fit  to  do  so.  He  remained  more  than 
a  year,  engaged  in  commercial  transactions.  Like  many 
others,  he  seems  to  have  thought  that,  as  a  neutral,  he  could 
share  the  business  of  the  enemies  of  the  nation,  and  enjoy  its 
profits,  without  incurring  the  responsibilities  of  an  enemy. 
He  was  mistaken.  He  chose  his  relations,  and  must  abide 
their  results.  The  ship  and  cargo  were  as  liable  to  seizure 
as  prize  in  his  ownership,  as  they  would  be  in  that  of  any 
citizen  in  Louisiana,  residing  in  New  Orleans,  and  not  ac¬ 
tually  engaged  in  active  hostilities  against  the  Union. 

This  brings  us  to  the  consideration  of  the  events  which 
transpired  at  New  Orleans,  and  in  its  vicinity,  very  soon 
after  the  Venice  was  taken  into  Lake  Ponchartrain. 


*  Prize  Cases,  2  Black.,  666;  concurred  in  by  dissenting  Justices,  Id.  687-8. 
t  Prize  Cases,  2  Black.,  674. 


20 


The  fleet  of  the  United  States,  under  command  of  Flag- 
officer,  now  Vice-Admiral,  Farragut,  reached  New  Orleans 
on  the  25tli  of  April,  and  the  flag-officer  demanded  the  sur¬ 
render  of  the  city,  and  required  the  authorities  to  display  the 
flag  of  the  Union  from  the  public  buildings.  The  mayor 
refused  to  surrender  and  refused  to  raise  the  National  flag, 
hut  declared  the  city  undefended  and  at  the  mercy  of  the 
victors.  The  flag-officer  then  directed  the  flag  to  be  raised 
upon  the  Mint.  It  was  raised  accordingly,  but  was  torn 
down  on  the  same  or  next  day.  The  flag  of  the  rebellion 
still  floated  over  the  hall  where  the  city  authorities  transacted 
business.  On  the  29th,  the  Union  flag  was  raised  again, 
both  on  the  Custom  House  and  Mint,  and  was  not  again 
disturbed.  On  the  30th,  the  flag-officer  received  from  the 
mayor  a  note  so  offensive  in  its  character,  that  all  communi¬ 
cation  was  broken  off  A  The  power  of  the  United  States  to 
destroy  the  city  was  ample  and  at  hand,  but  there  was  no 
surrender  and  no  actual  possession. 

The  transports  conveying  the  troops  under  the  command 
of  Major  General  Butler,  commanding  the  Department  of 
the  Gulf,  arrived  on  the  1st  of  May,  and  the  actual  occupa¬ 
tion  of  the  city  was  begun.  There  was  no  armed  resistance, 
but  abundant  manifestations  of  hostile  spirit  and  temper 
both  by  the  people  and  the  authorities.  The  landing  of  the 
troops  was  completed  on  the  2d  of  May,  and  on  the  6th  a 
proclamation  of  General  Butler,  which  had  been  prepared 
and  dated  on  the  1st,  and  the  next  day  printed  by  some 
soldiers,  in  an  office  seized  for  the  purpose,  was  published 
in  the  newspapers  of  the  city.  Some  copies  of  the  proclama¬ 
tion  had  been  previously  distributed  to  individuals,  but  it 
Was  not  made  known  to  the  population  generally  until  thus 
published.  There  was  no  hostile  demonstration,  and  no  dis¬ 
turbance  afterwards  ;  and  we  think  that  the  military  occupa¬ 
tion  of  the  city  of  New  Orleans  may  be  considered  as  sub¬ 
stantially  complete  from  the  date  of  this  publication  ;  and 


*  Message  and  Documents,  1862-3,  part  3,  pp.  282-288. 


21 


that  all  the  rights  and  obligations  resulting  from  such  occu¬ 
pation,  or  from  the  terms  of  the  proclamation,  may  be 
properly  regarded  as  existing  from  that  time. 

This  proclamation  declared  the  city  to  be  under  martial 
law,  and  announced  the  principles  by  which  the  command¬ 
ing  general  would  he  guided  in  its  administration.  Two 
clauses  only  have  any  important  relation  to  the  case  before 
us.  One  is  in  these  words  :  “All  the  rights  of  property,  of 
whatever  kind,  will  he  held  inviolate,  subject  only  to  the 
laws  of  the  United  States.”  The  other  is  thus  expressed : 
“  All  foreigners,  not  naturalized,  claiming  allegiance  to  their 
respective  governments,  and  not  having  made  oath  of  alle¬ 
giance  to  the  government  of  the  Confederate  States,  will  he 
protected  in  their  persons  and  property  as  heretofore  under 
the  laws  of  the  United  States.”  These  clauses  only  reiter¬ 
ated  the  rules  established  by  the  legislative  and  executive 
action  of  the  national  Government,  in  respect  to  the  por¬ 
tions  of  the  States  in  insurrection,  occupied  and  controlled 
by  the  troops  of  the  Union. 

The  fifth  section  of  the  act  of  July  13th,  1861,  providing 
for  the  collection  of  duties  and  for  other  purposes,  provided 
that,  under  certain  conditions,  the  President,  by  proclama¬ 
tion  might  declare  the  inhabitants  of  a  State,  or  any  section 
or  part  thereof,  to  be  in  a  state  of  insurrection  against  the 
United  States.  In  pursuance  of  this  act,  the  President,  on 
the  16th  of  August  following,  issued  a  proclamation  declar¬ 
ing  that  the  inhabitants  of  the  States  of  Virginia,  North 
Carolina,  Tennessee,  Arkansas,  and  the  other  States  south 
of  these,  except  the  inhabitants  of  Virginia  west  of  the  Al- 
leghanies,  and  of  those  parts  of  States  maintaining  a  loyal 
adhesion  to  the  Union  and  the  Constitution,  “or  from  time 
to  time  occupied  and  controlled  by  forces  of  the  United 
States,  engaged  in  the  dispersion  of  the  insurgents,”  were  in 
a  state  of  insurrection  against  the  United  States. 

This  legislative  and  executive  action  related,  indeed, 
mainly  to  trade  and  intercourse  between  the  inhabitants  ot 
loyal  and  the  inhabitants  of  insurgent  parts  of  the  country  ; 


22 


but,  by  excepting  districts  occupied  and  controlled  by 
national  troops  from  the  general  prohibition  of  trade,  it 
indicated  the  policy  of  the  Government  not  to  regard  such 
districts  as  in  actual  insurrection,  or  their  inhabitants  as 
subject,  in  most  respects,  to  treatment  as  enemies.  Military 
occupation  and  control,  to  work  this  exception,  must  be  actual ; 
that  is  to  say,  not  illusory,  not  imperfect,  not  transient; 
but  substantial,  complete,  and  permanent.  Being  such,  it 
draws  after  it  the  full  measure  of  protection  to  persons  and 
property  consistent  with  a  necessary  subjection  to  military 
government.  It  does  not,  indeed,  restore  peace,  or,  in  all 
respects,  former  relations ;  but  it  replaces  rebel  by  national 
authority,  and  recognizes,  to  some  extent,  the  conditions 
and  the  responsibilities  of  national  citizenship. 

The  regulations  of  trade  made  under  the  act  of  1861  were 
framed  in  accordance  with  this  policy.  As  far  as  possible 
the  people  of  such  parts  of  the  insurgent  States  as  came 
under  national  occupation  and  control,  were  treated  as  if 
their  relations  to  the  national  Government  had  never  been 
interrupted. 

It  is  true  that  the  general  exception  from  the  prohibition 
of  commercial  intercourse,  which  has  just  been  mentioned, 
was  cancelled  and  revoked  by  the  President’s  proclamation 
of  the  31st  of  March,  1863,  and,  instead  of  it,  a  particular 
exception  made  of  West  Virginia,  and  of  the  ports  of  New 
Orleans,  Key  West,  Port  Royal,  and  Beaufort,  in  North 
Carolina.  But  this  revocation  merely  brought  all  parts  of 
insurgent  States  under  the  special  licensing  power  of  the 
President,  conferred  by  the  act  of  July  13,  1861.  It  affected, 
in  no  respect,  the  general  principles  of  protection  to  rights 
and  property  under  temporary  government,  established  after 
the  restoration  of  the  national  authority. 

The  same  policy  may  be  inferred  from  the  conduct  of  the 
war.  Wherever  the  national  troops  have  re-established  order 
under  national  rule,  the  rights  of  persons  and  of  property 
have  been,  in  general,  respected  and  enforced.  When  Flag- 
officer  Farragut,  in  his  first  letter  to  the  rebel  mayor  of  New 
Orleans,  demanded  the  surrender  of  the  city,  and  promised 


23 


security  to  persons  and  property,  he  expressed  the  general 
policy  of  the  Government.  So,  also,  when  Major  General 
Butler  published  his  proclamation  and  repeated  the  same 
assurance,  and  made  a  distinct  pledge  to  neutrals,  he  made 
no  declaration  which  was  not  fully  warranted  by  that  policy. 
There  was  no  capitulation.  Neither  the  assurance  nor  the 
pledge  was  given  as  condition  of  surrender.  Both  wrere  the 
manifestation  of  a  general  purpose  which  seeks  the  re-estab- 
lishment  of  the  national  authority,  and  the  ultimate  restor¬ 
ation  of  States  and  citizens  to  their  national  relations,  under 
better  forms  and  firmer  guaranties,  without  any  views  of 
subjugation  by  conquest.  Hence,  the  proclamation  of  the 
commanding  general  at  New  Orleans  must  not  be  inter¬ 
preted  by  such  rules  as  governed  the  case  of  the  Ships  taken 
at  Genoa .*  Vessels  and  their  cargoes  belonging  to  citizens 
of  New  Orleans,  or  neutrals  residing  there,  and  not  affected 
by  any  attempts  to  run  the  blockade,  or  by  any  act  of  hos¬ 
tility  against  the  United  States  after  the  publication  of  the 
proclamation,  must  be  regarded  as  protected  by  its  terms. 

It  results  from  this  reasoning  that  the  Venice  and  her 
cargo,  though  undoubtedly  enemies’  property  at  the  time 
she  was  anchored  in  Lake  Pontchartrain,  cannot  be  regarded 
as  remaining  such  after  the  6th  of  May;  for  it  is  not  asserted 
that  any  breach  of  blockade  was  ever  thought  of  by  the 
claimant,  or  that  he  was  guilty  of  any  actual  hostility  against 
the  national  Government. 

It  is  hardly  necessary  to  add  that  nothing,  in  this  opinion, 
touches  the  liability  of  persons  for  crimes  or  of  property  to 
seizure  and  condemnation  under  any  act  of  Congress. 

Decree  Affirmed. 


*  4  Robinson,  387. 

[See  supra ,  p.  135,  The  Circassian:  a  ease,  in  some  senses,  suppletory  or 
coniplemcntal  to  the  present  one.] 


OPINION  OF  THE  ATTORNEY  GENERAL  OF  THE  UNITED 
STATES  IN  THE  SAVANNAH  COTTON  CASES. 


Attorney  General’s  Office, 
July  5  th,  1865. 

To  the  Hon.  Hugh  McCulloch, 

Secretary  of  the  Treasury: 

Sir — I  have  the  honor  to  acknowledge  the  receipt  of  your 
letter  of  17th  ult.,  submitting  for  my  opinion  the  questions 
that  have  arisen  in  your  Department  in  the  case  of  the 
“Savannah  Cotton.” 

The  circumstances  under  which  the  property  in  question 
came  into  the  possession  of  the  Government,  are  stated  in 
your  letter  substantially  as  follows: 

On  the  occupation  of  the  city  of  Savannah,  in  December 
last,  by  the  United  States  forces  under  Major  General  Sher¬ 
man,  some  thirty-eight  thousand  bales  of  cotton  were  found 
stored  there.  This  property  was  seized  and  taken  possession 
of  by  the  military  authorities,  and  by  them  turned  over  to 
agents  of  the  Treasury  Department,  as  “  captured  property,” 
pursuant  to  the  provisions  of  the  Acts  of  Congress  of  March 
12,  1863,  and  July  2,  1864,  (12  Stat.  at  large,  820;  13  Id., 
375.)  After  it  was  thus  received  by  the  appropriate  agents, 
the  property  was  forwarded  to  New  York,  and  there  sold  at 
auction,  as  provided  by  law. 

You  state  that  a  number  of  claims  for  the  proceeds  of  the 
sales  are  now  being  presented  to  your  Department,  some  of 
the  claimants  being  residents  of  Savannah,  who  aver  that 
they  have  been  loyal  to  the  Government  during  the  Rebellion  ; 
others  being  subjects  of  foreign  governments,  resident  in 
Savannah  or  abroad,  averring  that  they  were  neutral  during 
the  late  conflict;  others  again  being  Northern  merchants, 
stating  that  they  came  into  possession  of  the  cotton  claimed 
by  them  in  payment  of,  or  as  security  for,  debts  contracted 
prior  to  the  Rebellion ;  and  still  others  claiming  restitution 
of  their  property,  or  its  proceeds,  on  the  ground  that  the 


25 


cotton  in  question  was  not  capturable,  or  properly  “  captured 
property,”  and  should  not  be  held  and  treated  as  such. 

The  first  question  arising  on  this  state  of  facts  that  you 
submit,  is,  whether  the  property  to  which  reference  has  been 
made  should  or  should  not  be  regarded  as  “captured” 
under  the  acts  of  Congress  of  March  12,  1863,  and  July  2, 
1864. 

I  do  not  perceive  that  either  of  the  statutes  provides  what 
property  shall  be  regared  as  “captured  property,”  within 
the  meaning  of  the  law. 

A  definition  of  “  abandoned”  property,  however,  is  con¬ 
tained  in  the  1st  section  of  the  act  of  1864.  That  statute 
provides  that  il  property,  real  or  personal,  shall  be  regarded 
as  abandoned  when  the  lawful  owner  shall  be  voluntarily 
absent  therefrom,  and  engaged,  either  in  arms  or  otherwise, 
in  aiding  or  encouraging  the  Rebellion.”  (13  Stat.  at  large, 
376.) 

But  I  apprehend  that  there  need  be  no  difficulty  in  deter¬ 
mining,  for  our  present  purposes,  what  property  is  compre¬ 
hended  by  the  phrase  “  captured  property,”  as  used  in  these 
Statutes;  for  the  phrase  is  its  own  sufficient  explanation.  I 
suppose  that  all  movable  property,  other  than  that  species 
described  by  the  proviso  to  the  1st  section  of  the  act  of  1863, 
actually  and  hostilely  seized  and  taken  on  land,  by  a  military 
officer  or  soldier  of  the  United  States,  in  a  State  or  any  por¬ 
tion  of  a  State  designated  as  in  insurrection  against  the 
United  States,  may  be  regarded  as  “captured,”  within  the 
meaning  of  the  Statutes  of  1863  and  1864.  I  do  not  intend 
to  say  that  no  other  property  than  that  I  have  thus  endea¬ 
vored  to  describe,  may  be  denominated  and  treated  as  “  cap¬ 
tured  property,”  under  these  Statutes.  It  would  seem  by  the 
7th  section  of  the  act  of  1864,  that  certain  property  seized 
and  taken  by  naval  forces,  viz :  property  seized  by  the  Navy 
“  upon  any  of  the  inland  waters  of  the  United  States,”  may 
be  dealt  with  in  the  mauner  provided  by  the  laws  under 
consideration,  (13  Stat.  at  large,  377.)  Whether  this  section 
takes  away  the  prize  jurisdiction  of  the  Courts  in  all  cases 
of  seizure  of  water-borne  property  on  the  inland  waters  of 


the  United  States,  effected  there  by  naval  commissioned  cap- 
tors,  and  commits  all  jurisdiction  over  such  cases  to  the 
Court  of  Claims  and  to  Congress,  must  remain  for  judicial 
determination.  But  the  Supreme  Court  has  recently  decided 
that  private  property  seized  by  a  naval  force  on  land  border¬ 
ing  upon  one  of  the  inland  waters  of  the  insurrectionary 
South,  was  not  the  subject  of  prize  jurisdiction,  and  was 
receivable  by  the  Treasury  agents  under  the  Statute  of  1863. 
(W.  S.  v.  72  Bales  of  Cotton,  Dec.  S.,  1864,  No.  360.)  This 
decision  was  rendered  in  a  case  to  which  the  act  of  1864  did 
not  apply,  the  capture  then  considered  having  been  made 
prior  to  the  passage  of  that  Statute.  I  refer  to  it  for  the 
purpose  of  showing  that  certain  cases  of  purely  naval  capture 
must  pursue  the  course  indicated  in  the  Statute  for  the  col¬ 
lection  of  abandoned  and  captured  property.  I  have  said 
that  property  seized  or  taken  by  any  military  person  in  the 
insurrectionary  territory  is  denominable  as  “  captured;”  but 
the  6th  section  of  the  act  of  1863  would  seem  to  affix  that 
character  to  “ cotton ,  sugar,  rich,  and  tobacco,”  received  by 
any  United  States  officer  or  soldier  within  insurrectionary 
districts.  The  section  provides  that  it  shall  be  the  duty  of 
every  officer  or  private  soldier,  who  may  take  or  receive 
abandoned  property,  or  any  cotton,  sugar,  rice,  or  tobacco, 
from  persons  in  insurrectionary 'districts,  or  have  such  property 
under  his  control,  to  turn  the  same  over  to  an  agent  of  the 
Treasury  Department ;  and  it  further  provides  that  refusal 
or  neglect  to  do  so  shall  subject  such  an  officer  or  soldier  to 
trial  and  punishment.  (12  Stat.  at  large,  821.) 

Property  of  the  foregoing  character  thus  turned  over  to  a 
Treasury  agent,  and  in  that  manner  “  received”  by  him, 
must  be  dealt  with  as  the  2d  section  of  the  act  provides  ; 
that  is,  it  must  be  sold,  and  its  proceeds  paid  into  the  Trea¬ 
sury,  there  to  await  the  action  of  the  Court  of  Claims,  when 
duly  invoked. 

Thus  it  appears  that  all  cotton,  received  by,  or  that  may 
have  come  under  the  control  of  any  military  officer  or  soldier, 
whether  it  was  actually  seized  or  captured  by  him  or  not, 
must  be  dealt  with  as  “  abandoned  or  captured  property.” 


27 


I  may  have  occasion  hereafter  to  comment  upon  the  effect  of 
this  provision. 

The  Statute,  it  may  be  said,  thus  affixes  to  all  cotton,  as 
well  as  all  the  other  articles  above  stated,  that  may  be  under 
the  control  of  a  military  or  naval  officer  in  the  insurrectionary 
districts,  the  de  jure  character  of  “  captured”  property,  and 
when  such  property  is  received  by  a  Treasury  officer,  appointed 
to  execute  the  provisions  of  the  Acts  of  1863  and  1864,  it 
becomes,  it  may  be  said,  de  facto  “  captured”  property,  and 
must  be  disposed  of  accordingly. 

I  am  of  opinion,  therefore,  that  the  cotton  found  by  our 
army  at  Savannah,  taken  possession  of  there  by  the  military 
authorities,  and  received  from  them  by  the  agents  of  the 
Treasury  Department,  is,  and  should  be,  regarded  as  de  facto 
and  de  jure  “captured”  property,  under  the  Statutes  of 
1863  and  1864. 

The  second  question  which  you  propound  is,  whether,  if 
this  property  be  of  the  character  that  I  am  of  opinion  it  is, 
the  power  rests  with  the  Secretary  of  the  Treasury  or  the 
President  to  appoint  a  commission  to  examine  the  claims, 
and  restore  to  loyal  claimants  the  proceeds  of  so  much  of  the 
property  in  question,  as  they  can  show  to  have  been  legally 
theirs. 

I  am  of  opinion  that  neither  the  President,  nor  any  other 
Executive  Officer,  can  restore,  or  authorize  such  a  commission 
as  you  suggest,  to  make  restoration  of  the  proceeds  of  their 
captured  property  to  these  loyal  claimants.  Congress,  by 
the  legislation  under  consideration,  has  reserved  to  itself  the 
power  of  finally  disposing  of  the  claims  of  the  alleged  owners 
of  this  property  ;  and  so  long  as  that  legislation  exists,  the 
claimants  must  pursue  the  remedy  which  it  indicates  for  the 
establishment  and  enforcement  of  their  rights.  By  the  Con¬ 
stitution,  Congress  has  exclusive  power  “to  make  rules  con¬ 
cerning  captures  on  land  and  water.”  The  present  legislation, 
I  apprehend,  is  clearly  an  exercise  of  that  power.  This  is  a 
general  and  comprehensive  sovereign  prerogative.  Under 
other  systems  of  Government,  the  authority  to  make  such 
rules  may  be  exercised  by  the  political  department.  But  in 


28 


this  country  the  Legislative  Department  of  the  Government 
possesses  exclusive  authority  both  to  establish  rules  for  the 
regulation  of  the  right  of  capture  in  time  of  war,  and  also  to 
provide  the  method  by  which  all  questions  touching  captures 
may  he  determined. 

The  present  legislation  is  not  so  much  a  regulation  of  the 
right  of  capture,  though  the  6th  section  of  the  Act  of  1863 
may  he  interpretable  as  authorizing,  if  not  commanding,  the 
seizure  of  certain  kinds  of  property  found  by  our  military 
forces  within  the  hostile  districts  of  the  South — as  it  is  a  pro¬ 
vision  for  the  judicial  ascertainment  of  the  rights  of  persons 
affected  by  captures  that  may  have  been,  or  may  be,  made  in 
the  progress  of  our  belligerent  operations  set  on  foot  for  the 
reduction  of  the  rebellious  Southern  country.  Congress  took 
notice  of  the  fact  that  captures  of  private  property  on  land 
had  been  made,  and  would  continue  to  be  made,  by  the  armies 
operating  in  and  against  that  terrritory,  as  a  necessary  and 
proper  means  of  diminishing  the  wealth,  and  thus  reducing 
the  power  of  the  insurgent  rulers.  It  was  not  expected  that 
such  captures  had  been,  or  would  be,  in  all  cases,  well  and 
wisely  made,  or  that  in  the  course  of  such  predatory  hostility 
the  innocent  would  not  sometimes  suffer  as  well  as  the  guilty. 
Nor  was  it  thought  well  that  the  administration,  so  to  speak, 
of  so  much  of  the  property  within  the  enemies’  territory  as 
might  be  reduced  into  the  the  possession  of  the  military 
forces,  should  be  controlled  by  or  under  Executive  authority. 

In  this  view  of  existing  facts  and  of  just  policy,  the  system 
provided  by  the  act  of  1863,  was  devised  for  the  adjudication 
and  decision  of  the  cases  contemplated  by  the  Statute. 

The  Secretary  of  the  Treasury  was  authorized  to  appoint 
agents  to  “collect  all  abandoned  or  captured  property”  in  the 
enemies’  country.  To  secure  faithful  and  honest  performance 
of  their  duty,  the  Secretary  was  authorized  to  require  such 
agents  to  give  bonds  in  such  amounts  as  he  might  deem 
necessary.  The  duty  of  the  agents  was  to  receive  all  prop¬ 
erty  in  the  insurgent  States,  which  was,  in  fact,  captured  or 
seized  out  of  the  enemies’  possession  by  the  military  authorities. 
They  had  no  duty  or  power  to  inquire  whether  or  not  such 


29 


property  had  been  rightfully  captured — whether  the  Generals 
who  reported  it  to  them  for  collection  had  observed,  in 
effecting  the  captures,  what  are  called  the  “  recognized  usages 
of  war,”  or  had  violated  all  the  principles  of  writers  on  what 
is  styled  the  Law  of  Nations,  supposed  to  tend  against  the 
right  of  seizing  private  property  on  land,  but  it  was  the  duty 
of  the  Treasury  agents  simply  to  receive  all  property  reported 
to  them  as  having  been  captured,  irrespective  of  any  consid¬ 
erations  touching  the  legal  exemption  of  any  of  it  from 
seizure,  and  to  dispose  of  it  in  the  manner  provided  by  the 
law.  Alter  the  conversion  of  the  property  into  money,  the 
proceeds  were  directed  to  be  paid  into  the  Treasury.  The 
words  of  the  Statute  are  “the  proceeds  thereof  shall  be  paid 
into  the  Treasury  of  the  United  States.”  But  these  proceeds 
do  not  pass  into  the  Treasury  as  proceeds  of  property  sold 
under  a  judicial  sentence  of  confiscation.  They  are  not 
sequestered  or  condemned,  but  simply  held  by  the  United 
States,  so  to  speak,  in  trust  for  those  who  may,  in  the  man¬ 
ner  provided  and  in  the  time  limited  by  the  law,  ultimately 
establish  a  legal  right  to  receive  them  after  pacification. 
When  the  insurrection  has  been  suppressed,  the  owners  are 
authorized  to  invoke  the  jurisdiction  of  the  Court  of  Claims, 
and  obtain  there  an  adjudication  of  their  respective  claims. 
The  proceeds  of  the  property  are  thus  in  the  possession  of  the 
United  States,  subject  to  the  adjudications  of  that  Court;  and 
when  it  shall  have  passed  upon  the  claimants’  rights,  and 
decreed  in  their  favor,  Congress  has  solemnly  declared  that 
they  shall  receive  restitution  of  their  property.  In  the 
presence  of  such  legislation — covering,  as  it  does,  the  entire 
subject  matter  ;  providing  for  the  safe  custody  of  the  property 
in  question  pending  hostilities,  and  for  the  final  judicial 
determination  of  the  rights  of  the  parties  in  interest — I 
cannot  see  that  the  Executive  has  power  to  make  a  different 
disposition  of  the  property  from  that  provided  by  Congress, 
or  authorize  any  one  to  determine  the  questions  which  Con¬ 
gress  has  entrusted  to  the  decision  of  another  forum.  I  am, 
therefore,  of  opinion,  in  reply  to  your  inquiry,  that  jurisdic¬ 
tion  cannot  be  conferred  upon  a  commission,  appointed  either 


30 


by  the  President  or  [Secretary  of  the  Treasury,  to  examine 
the  claims  in  question,  and  to  make  restoration  of  the  pro¬ 
ceeds  of  so  much  of  this  cotton  as  may  belong  to  legal 
claimants. 

The  third  and  last  question,  you  propound,  is  what  dis¬ 
position  should  be  made  of  the  proceeds  of  the  sales  of  the 
property. 

I  think  that  it  is  your  duty  to  see  that  the  direction  of  the 
act  of  Congress  is  obeyed  by  those  in  whose  hands  these  pro¬ 
ceeds  may  be.  The  Statute  says  that  after  the  sale  of  any 
abandoned  or  captured  property,  “  the  proceeds  thereof  shall 
he  paid  into  the  Treasury  of  the  United  States.” 

I  am  of  opinion,  therefore,  that  the  proceeds  of  the  prop¬ 
erty  in  question  should  be  paid  into  the  Treasury,  there  to 
await  the  action  of  the  Court  of  Claims,  and  of  Congress. 

Very  respectfully, 

Your  obedient  servant, 

JAMES  SPEED, 

Attorney  General. 


Panrohlets. 

L15W1 

Vol.905 

DATE 

ISSUED  TO 

L.I'SWI  Ool-HoS' 


